1413249 (Refugee)

[2015] AATA 3133

1413249 (Refugee) [2015] AATA 3133 (3 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413249

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:3 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 July 2015 at 5:11pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Nepal applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant was invited by the Tribunal to appear before it on 3 July 2015 to give evidence and present arguments.  On 2 July 2015 the applicant’s migration agent wrote to the Tribunal indicating that the applicant would not be giving oral evidence or submitting any further evidence in the case, and that the Tribunal should make a decision ‘on the papers’.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. The issue in this case is whether there is sufficient evidence for the Tribunal to be satisfied that the applicant is owed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background and claims

10. The applicant was granted a higher education student visa [in] November 2009, valid until [date] March 2013. The applicant arrived in Australia [in] November 2009. An application for a business (Long stay) visa was refused [in] September 2013. The current application for a Protection visa was lodged [in] November 2013.

11. The applicant’s application forms for a Protection visa contain the following information. The applicant was born on [date] in [location], Nepal.  The applicant is a citizen of Nepal and does not hold citizenship nor is a national of any other country. The applicant indicates that he does not have a right to enter and reside in any other country. The applicant lived from his birth until October 2009 in the city of his birth. The applicant completed his school leaving certificate in June [year]. He completed A levels in February [year]. In Australia he has studied [various courses]. In Australia the applicant has worked as [occupation].

12. The applicant, in the Protection visa application form, states that he left his country ‘because of my family problem. I’m seeking for protection visa. I’m not to secure to go back’. The applicant indicates that he has not experienced harm in Nepal. When asked in the form what he fears may happen if he goes back to Nepal he states ‘my parents will ask me to get married and ask for money’. When asked who he thinks will harm or mistreat him if he goes back, he indicates ‘maybe or may not, I don’t know’. When asked what he thinks will happen to him if he goes back indicates ‘my relation with family has never been really good. So, I’m not too comfortable to go back.’

13. The decision of the delegate of the Minister records that the applicant did not attend the scheduled interview and did not contact the Department to advise that he would not attend.

    Assessment

14. The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

15. For the purposes of section 36(2)(a) the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason he returns to his country. For the purposes of s.36(2)(aa) (‘the complementary protection criterion’) the Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Nepal, there is a real risk he will suffer significant harm. The applicant has indicated that he has suffered no past harm in Nepal. He makes only the most generalised claims that he has family problems, that his parents will ask him to get married and ask for money. He equivocates as to whether he will suffer harm if he returns to Nepal.

16. This evidence is not sufficient to enable the Tribunal to draw any conclusions as to the applicant’s past or future circumstances or to be satisfied that there would be a real chance of serious harm or a real risk of significant harm to him if he returns to Nepal.

17. It follows that, on the information before it, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm in Nepal for a Convention reason now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for a Convention reason.

18. For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) (‘the complementary protection criterion’).

19. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they he does not satisfy the criteria for a protection visa, he cannot be granted the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    David McCulloch
    Member